| People v Ortiz |
| 2009 NY Slip Op 01408 [59 AD3d 350] |
| February 26, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Freddy Ortiz, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Christopher J. Blira-Koessler of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (John S. Moore, J., at hearing; Robert G. Seewald,J., at jury trial and sentence), rendered April 4, 2005, convicting defendant of manslaughter inthe second degree, and sentencing him to a term of 5 to 15 years, unanimously affirmed.
The court properly denied defendant's suppression motion. There is no basis for disturbingthe court's credibility determinations (see People v Prochilo, 41 NY2d 759, 761 [1977]).Defendant asserts that his statements to a detective, and subsequently to an Assistant DistrictAttorney, were products of a series of alleged Fourth Amendment violations. He claims that,without probable cause or a warrant, the police unlawfully entered his apartment, took him intocustody, and detained him at a police station for an extended period of time. However, the recordsupports the hearing court's findings that, by means of a permissible ruse regarding their reasonfor wanting to speak to defendant (see People v Williams, 222 AD2d 721, 721 [1995],lv denied 87 NY2d 978 [1996]), the police obtained defendant's grandfather's permissionto enter the apartment and defendant's own agreement to accompany the officers to the precinct,where defendant remained voluntarily and was not detained until after he confessed. Evenassuming defendant's grandfather ultimately revoked his consent to the police presence in theapartment, the police had already encountered defendant and obtained his agreement to departwith them. At the precinct, defendant remained unrestrained in an office-like interview room.The hearing court correctly determined that defendant was not in custody until after he confessed(see People v Morales, 42 NY2d 129, 137-138 [1977], cert denied 434 US 1018[1978]). Regardless of their subjective intent, the police never conveyed to defendant that he wasin custody, or that he was at the precinct for any reason other than to wait to be interviewedabout an automobile accident. Given the totality of the circumstances, a reasonable innocentperson in defendant's position would not have thought he had been seized by the police (seePeople v Centano, 76 NY2d 837 [1990]; People v Yukl, 25 NY2d 585, 590-592[1969], cert denied 400 US 851 [1970]). Therefore, we reject defendant's claim that therewas a continuing unlawful detention. We also conclude that defendant's confession to a detectiveand the subsequent videotaped statement [*2]were attenuatedfrom any possible violation of Payton v New York (445 US 573 [1980]) that may haveoccurred at the apartment (see Brown v Illinois, 422 US 590, 602-604 [1975]; Peoplev Harris, 77 NY2d 434 [1991]).
The trial court's supplemental instructions on an issue relating to the voluntariness ofdefendant's statements, when read as a whole and in the context of the court's originalinstruction, conveyed the appropriate principles of law and provided adequate guidance to thejury. Thus, even assuming without deciding that the issue of whether the People provedattenuation beyond a reasonable doubt is properly one for the jury, defendant's challenge to thesupplemental instructions is unavailing. Concur—Saxe, J.P., Catterson, McGuire,Moskowitz and Acosta, JJ.